Lamont Davis v. State

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LAMONT DAVIS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-794

[December 17, 2014]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.

Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562010CF000850A.

Gregory J. Morse of Morse & Morse, LLC, West Palm Beach, for

appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard

Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

FORST, J.

Appellant Lamont Davis was convicted of felony murder and sentenced

to life imprisonment for his role in the 2010 killing of a young mother in

Port St. Lucie, Florida. At the same trial, he also was convicted of armed

burglary with a firearm causing bodily harm or death, possession of a

firearm by a felon, possession of ammunition by a felon, and high-speed

or wanton fleeing.

Appellant now appeals his convictions, arguing the trial court erred by

(1) admitting statements he made after he invoked his right to counsel; (2)

admitting evidence obtained pursuant to a search warrant that used

statements from the suppressed portion of his interview; (3) denying his

motion to sever his high-speed fleeing count from the rest of the trial; and

(4) admitting evidence relating to the 10 mm ammunition used during the

crime. As set forth below, we find no reversible error and affirm his

convictions.

Background

The victim was shot and killed during a robbery of her home in March

2010. Investigators found two bullet casings at the scene, including one

from a 10 mm round. Investigators tracked the purchase of the 10 mm

ammunition to a gun shop in Port St. Lucie, Florida. Using security

footage from the shop, they identified Appellant and his co-defendant as

the purchasers of the ammunition.

Eight days later, Appellant was arrested for high speed or wanton

fleeing after he sped away from a routine traffic stop and crashed his car

into an apartment building, following which he fled on foot before being

apprehended. Items taken from the victim’s home were found in

Appellant’s car.

While in pretrial custody, Appellant was interviewed by officers from

the Port St. Lucie Police Department and an agent from the federal Bureau

of Alcohol, Tobacco, Firearms and Explosives (“ATF”). At the beginning of

the interview, the ATF agent advised Appellant that the agent could not

speak to him unless Appellant waived his rights. Appellant replied, “Well

could I – Could I call my mother? I got a lawyer. Could I call them?” The

agent spoke with Appellant for several more minutes before an officer from

the Port St. Lucie Police administered Appellant Miranda1 rights.

Appellant agreed to speak with the officers and signed a waiver form.

Appellant continued talking to the investigators before again asking, “Can’t

I call my lawyer?” Questioning nonetheless continued, and Appellant

eventually told officers he was involved in the robbery and murder.

Following the interrogation, detectives obtained a search warrant and

executed a search of the residence of Appellant’s girlfriend. Additional

items removed from the victim’s home were found in the girlfriend’s

residence.

Appellant filed a pretrial motion to suppress his statements made

during the course of the police interview. The trial court granted the

motion in part and denied it in part, suppressing everything Appellant said

before he was read his Miranda rights and everything after he stated,

“Can’t I call my lawyer?” The motion was denied for everything between

those points.

Appellant also moved to suppress evidence obtained from search

warrants for his automobile and his girlfriend’s residence and to sever his

high speed fleeing charge from the other counts. The trial court denied

these motions and ruled that the fleeing charge was “episodically related

to the burglary because [Appellant’s] automobile contained many of the

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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items reportedly stolen during the burglary when the murder occurred.”

At trial, the portion of Appellant’s statement that was not suppressed

was entered into evidence. Among other testimony, Appellant’s girlfriend

stated that he had planned the robbery in her presence, brought stolen

goods to her home, and asked his co-conspirator why he had shot the

victim. The jury also heard tapes of phone calls between Appellant and

his girlfriend in which he asked her to find a gun he had hidden. Appellant

was convicted on all counts.

Analysis

1. Admission of Statements

We apply a mixed standard of review when reviewing a motion to

suppress. We must defer to the trial court’s factual findings, but we review

any legal conclusions de novo. State v. E.W., 82 So. 3d 150, 151 (Fla. 4th

DCA 2012).

Both the United States and Florida Constitutions protect criminal

defendants from compelled self-incrimination. U.S. CONST. amend V; Art.

I, § 9, Fla. Const. The United States Supreme Court has held that law

enforcement officers are required to inform suspects of their right to have

counsel present during custodial interrogations. Miranda, 384 U.S. at

444. “If the individual states that he wants an attorney, the interrogation

must cease until an attorney is present.” Id. at 474. “After such warnings

have been given, . . . the individual may knowingly and intelligently waive

these rights and agree to answer questions or make a statement.” Id. at

479.

In order for a suspect to invoke his right to counsel, he must make, “[a]t

a minimum, some statement that can reasonably be construed to be an

expression of a desire for the assistance of an attorney.” Moss v. State, 60

So. 3d 540, 543 (Fla. 4th DCA 2011) (quoting McNeil v. Wisconsin, 501

U.S. 171, 178 (1991)). However, “if a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable officer in light

of the circumstances would have understood only that the suspect might

be invoking the right to counsel, our precedents do not require the

cessation of questioning.” Davis v. United States, 512 U.S. 452, 459 (1994)

(emphasis in original); see also State v. Owen, 696 So. 2d 715 (Fla. 1997)

(holding that Florida follows the rule in Davis, allowing questioning until

a suspect clearly requests an attorney).

While courts have not always been clear on what constitutes an

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“unequivocal invocation” of one’s right to counsel, Appellant’s initial

request for an attorney in this case seems to qualify. Although he also

references a desire to speak to his mother, Appellant’s initial statement,

“Well, could I – [c]ould I call my mother? I got a lawyer. Could I call them?”

is a sufficiently clear expression of his desire for the assistance of an

attorney.

“Under the well-settled principles of Miranda, once a suspect

unequivocally invokes the right to counsel, all interrogation must cease.”

McKenzie v. State, 125 So. 3d 906, 909 (Fla. 4th DCA 2013). “If the

accused invoked his right to counsel, courts may admit his responses to

further questioning only on finding that he (a) initiated further discussions

with the police, and (b) knowingly and intelligently waived the right he had

invoked.” Moss, 60 So. 3d at 544 (quoting Smith v. Illinois, 469 U.S. 91,

95 (1984)).

[W]hen an accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that right cannot be

established by showing only that [the accused] responded to further

police-initiated custodial interrogation even if he has been advised

of his rights. We further hold that an accused, . . . having expressed

his desire to deal with the police only through counsel, is not subject

to further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). Since questioning never

ceased, Appellant never reinitiated the conversation with the officers, and

he did not appear to “knowingly and intelligently” waive the right he had

invoked. Accordingly, there is insufficient evidence of a valid waiver.

Despite our agreement with Appellant that his Miranda rights were

violated, such violations are subject to a harmless error analysis. Caso v.

State, 524 So. 2d 422, 425 (Fla. 1988). The harmless error doctrine

permits a conviction to stand where the State can “prove beyond a

reasonable doubt that the error complained of did not contribute to the

verdict or, alternatively stated, that there is no reasonable possibility that

the error contributed to the conviction.” State v. DiGuilio, 491 So. 2d 1129,

1135 (Fla. 1986). The “application of [the harmless error] test requires an

examination of the entire record by the appellate court including a close

examination of the permissible evidence on which the jury could have

legitimately relied, and in addition an even closer examination of the

impermissible evidence which might have possibly influenced the jury

verdict.” DiGuilio, 491 So. 2d at 1135.

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In this case, the error in admitting Appellant’s statements was

harmless, as the improperly admitted statements were cumulative of other

evidence presented at trial. Appellant informed the detectives that he was

in the gun store from which the ammunition used in the burglary and

murder had been purchased; however, the detectives initially had

suspected that the ammunition had been purchased at this store before

Appellant’s interview, and the jury was shown a video still of Appellant

purchasing ammunition in the store, heard testimony that he was

identified as the man inside the store, and a store clerk identified Appellant

in a photo lineup. Appellant admitted that he was a convicted felon; this

information was stipulated to by the parties at trial and was easily

discoverable. Appellant also admitted that he fled from the police and that

he was the driver and sole occupant of the vehicle; this information was

brought forward by the arresting officer during his testimony at trial.

Moreover, during the interview, Appellant stated that he heard the

victim was killed in front of her child, information which a testifying police

officer indicated had not been disclosed to the media. Without this

information, the State nonetheless had sufficient evidence to convict

Appellant, in light of the other evidence presented at trial, including

testimony from his girlfriend that she observed Appellant planning the

robbery and discussed the shooting of the victim with him; the discovery

of the stolen items in Appellant’s car and at his girlfriend’s residence; and

the video recording and testimony with respect to high speed car chase

and the purchase of 10 mm ammunition. Additionally, Appellant informed

the detectives that he merely was repeating “word on the street,” and

denied having any first-hand knowledge about the victim’s murder.

Appellant also told the police detectives that he had heard that the victim

died in front of her daughter; evidence presented at trial reflected that the

victim had two sons, no daughters.

“Where the evidence introduced in error was not the only evidence on

the issue to which the improper evidence related, the introduction can be

harmless.” Hojan v. State, 3 So. 3d 1204, 1210 (Fla. 2009). That is the

case here. As there was abundant evidence linking Appellant to the crimes

charged, the trial court’s error in not suppressing the entirety of

Appellant’s interview constituted harmless error.

2. Search Warrant

Some of the physical evidence used to convict Appellant was seized

pursuant to a warrant to search the home of Appellant’s girlfriend. Search

warrants must be based on “probable cause supported by affidavit or

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affidavits, naming or describing the person, place, or thing to be searched

and particularly describing the property or thing to be seized.” § 933.05,

Fla. Stat (2010). The affidavit in support of this search warrant included

information obtained from Appellant in contravention of his Constitutional

rights.

The inclusion of illegally obtained evidence in the supporting

affidavit, where the affidavit contains other valid allegations

sufficient to establish probable cause, does not invalidate a search

warrant. The trial court’s duty is to excise the invalid allegations

and determine whether the independent and lawfully obtained

information demonstrates probable cause.

State v. Hunwick, 434 So. 2d 1000, 1001 (Fla. 4th DCA 1983) (internal

citations omitted). When Appellant’s statements are removed from the

affidavit, there are no facts to support probable cause to search his

girlfriend’s home.

However, like the admission of Appellant’s statements, this is not the

end of our analysis. “[T]he exclusionary rule will not be applied where it

can be shown that, had the evidence in question not been obtained by the

challenged police conduct, it ‘ultimately or inevitably would have been

discovered by lawful means.’” Craig v. State, 510 So. 2d 857, 862 (Fla.

1987) (quoting Nix v. Williams, 467 U.S. 431, 434 (1984)). For the

inevitable discovery doctrine to apply, the State must establish that the

evidence would have been discovered “by means of normal investigative

measures that inevitably would have been set in motion as a matter of

routine police procedure.” Id. at 863.

“In making a case for inevitable discovery, the State must show ‘that at

the time of the constitutional violation an investigation was already under

way.’” Moody v. State, 842 So. 2d 754, 759 (Fla. 2003) (quoting Nix, 467

U.S. at 457 (Stevens, J., concurring)). Here, investigators had already

discovered sufficient evidence to create probable cause for a search of

Appellant’s girlfriend’s residence prior to his interrogation. Officers linked

the stolen item found in Appellant’s car to the murder scene before talking

to Appellant. Likewise, investigators obtained a recording of the phone

call from Appellant to his girlfriend, asking her to find the gun he had

hidden, two days before he was interrogated. This recording would give

investigators reason to believe his girlfriend might know of or possess

evidence relevant to their ongoing investigation. From this information,

routine investigative measures would have inevitably discovered the

evidence presented at trial, making that evidence admissible. Therefore,

there was no error in admitting the evidence obtained from the search

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warrant.

3. Severance of High Speed or Wanton Fleeing Count

“Because the decision to grant or deny a motion for severance rests

within the sound discretion of the trial court, we review the denial of the

motion for an abuse of discretion.” Williams v. State, 40 So. 3d 89, 91 (Fla.

4th DCA 2010).

Two or more offenses can be charged in the same indictment or

information “when the offenses . . . are based on the same act or

transaction or on 2 or more connected acts or transactions.” Fla. R. Crim.

P. 3.150(a).

The “connected acts or transactions” requirement set forth in rule

3.150(a) requires that the charges joined for trial must be considered

in an episodic sense. . . . [T]he crimes in question must be linked in

some significant way. . . . [C]rimes linked in an episodic sense

generally fall into two categories: first, those that occurred during a

crime “spree” interrupted by no significant period of respite; and

second, situations in which one crime is causally related to the

other, even though there may have been a significant lapse of time

between crimes.

Shermer v. State, 935 So. 2d 74, 76 (Fla. 4th DCA 2006) (internal

quotations and citations omitted). The trial court found that Appellant’s

flight from officers eight days after the murder was episodically related to

the prior crimes. We agree.

Appellant’s flight from the traffic stop reasonably could be construed as

an attempt to prevent the officers from discovering the stolen items in his

car that would link him to the murder scene. The commission of one crime

in an attempt to avoid conviction for another is a sufficient connection to

link the two crimes. See Sule v. State, 968 So. 2d 99 (Fla. 4th DCA 2007)

(holding the trial court did not abuse its discretion by denying a motion to

sever counts where defendant, charged with murder and arson, solicited

other inmates to murder his neighbor to hinder the prosecution of the

initial crimes). Therefore, the trial court did not abuse its discretion in

this case by denying Appellant’s motion to sever the high speed or wanton

fleeing count.

4. Evidence of 10 mm Ammunition

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Finally, Appellant challenges the admission of evidence pertaining to

the 10 mm ammunition. “A trial court’s decision to admit evidence is

reviewed using an abuse of discretion standard of review, as limited by the

rules of evidence.” Lopez v. State, 97 So. 3d 301, 304 (Fla. 4th DCA 2012).

The admission of evidence relating to the ammunition was clearly relevant

to the trial, as Appellant was charged with possession of ammunition by a

felon. Furthermore, the ammunition was relevant as bullets of this caliber

were used in the murder. See Holloway v. State, 114 So. 3d 296 (Fla. 4th

DCA 2013). Finally, the record does not support Appellant’s argument on

appeal that “the state’s evidence that the ammunition was unique or rare

was woefully inadequate.” Therefore, the trial court did not abuse its

discretion in admitting this evidence.

Conclusion

In sum, we hold that any error in the admission of Appellant’s

statements and their use in applying for a search warrant was not

reversible error. No other reversible error exists to allow his convictions to

be reversed. Therefore, we affirm Appellant’s convictions on all counts.

Affirmed.

CIKLIN and CONNER, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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